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APPEAL COURT, HIGH COURT OF JUSTICIARY
[2022] HCJAC 25
HCA/2021/000376/XC
Lord Justice Clerk
Lord Matthews
Lady Wise
OPINION OF THE COURT
delivered by LADY DORRIAN, the LORD JUSTICE CLERK
in
APPEAL AGAINST CONVICTION
by
CR
Appellant
against
HER MAJESTY'S ADVOCATE
Respondent
Appellant: Gravelle, sol adv; Paterson Bell, Solicitors, Edinburgh for Beltrami & Co, Glasgow
Respondent: Lord Advocate; Crown Agent
28 June 2022
[1]
The appellant was convicted of five charges of assault and lewd and libidinous
practices and behaviour against his two foster daughters, JC and RC. Charges (2) and (3)
relate to lewd and libidinous behaviour towards JC over a period from November 1978 to
November 1985. These charges related to one continuous course of serious sexual conduct
towards the child in question, including penetrative abuse, divided into two charges to
reflect whether the complainer was under or over the age of 12 at the time. Charge 5 was
2
lewd and libidinous practices towards the other child by exposing himself on one occasion
between August 1978 to June 1982.
[2]
The trial judge directed the jury that the evidence of JC could be corroborated by the
evidence of RC and a further witness, PW, as to admissions made by the appellant. The sole
questions arising in this appeal are whether the admissions were capable of affording
corroboration, and whether the jury were properly directed on the matter.
The evidence
[3]
Each complainer gave evidence of the appellant's conduct towards them along the
lines specified in the relevant charges. JC also spoke to certain admissions by the appellant,
but this evidence did not have corroborative value, as the temporary judge correctly
directed the jury. Otherwise, the evidence relating to the admissions was as follows:
The evidence of RC
The first admission at the appellant's home
[4]
This admission took place at the home of the complainer. JC had been threatening to
kill herself and RC "had reached a breaking point then and said right... we're going to go to
Scotland and we're going to have this out, we're going to...we all know this happened and
we're going to go and confront it." When arranging the visit, RC said that the appellant's
wife was crying over the phone because in RC's perception "she knew what we were
coming home for". At the appellant's home, RC, JC, the appellant and his wife were
present.
[5]
RC confronted the appellant and said:
"you know why we're here, you know why we're here. You have to admit it because
I can't take any more of this...J[C] can't take an y more and we need to talk about
what happened".
3
The appellant could not look at them and was looking at the floor:
"he started to get upset because the emotion round the table was obviously very high
and he said something along the lines of ... I was angry and I called him, I'm not
going to repeat the words in court, but I was angry and I called him, it was a profane
word. And I said "you have to admit what you've done".
[6]
When asked about the appellant's response, RC said:
"Um, my recollection is he, I cannot say with 100 per cent ... I cannot, I wish I could
say he said `Yes, I did it', but I, I would be lying if I said that so I'm not going to say
that. But what I remember is him saying `I couldn't help myself but I'm not like
those people you hear about on the radio, on the news.' And that, to me, was an
admission of his guilt".
The second admission over speakerphone
[7]
RC spoke to an occasion when she visited the flat in England where JC lived with her
partner, PW. JC called the appellant's home number and put the call on speakerphone. JC
was upset and said something like:
"I want you to admit what you did, why can't you just admit what you did."
"[JC] was very upset...it was along the lines of `I want you to admit what you did,
why can't you just admit what you did'..."
RC's evidence continued:
"And did she give him any indication as to what she wanted him to admit to?-To the
sexual abuse.
How did she make clear the sexual abuse? I don't...I honestly can't recall specific,
specific language she used to say that, but because...as a family we knew it didn't
need to be specified in that way, that is my recollection, honest recollection.
And then was there a response on [the appellant's] part? he said something ... he
started to, I think he started to cry and said something like `I've been carrying this,
I've been carrying this around with me too all of these years".
The evidence of PW
The second admission over speakerphone
4
[8]
PW spoke to the same incident over speakerphone. He had gone out for about an
hour leaving the sisters together. On his return he heard part of the conversation over
speakerphone. His recollection was of JC saying to the appellant that he wanted him to take
responsibility for what he did to her, what he did to her sex ually, and she wanted him to
admit it. She told the appellant that he had abused her sexually. The accused replied, "I
know I did, and I have had to bear that all my life. I've had to live with that all my life."
The charge to the jury
[9]
The emphasis in the extracts which follow is ours. As to the first admission, the trial
judge directed the jury that they would be:
"entitled to treat what [RC] says was said by the accused as an admission to some
sort of sexual abuse, even if the expression, sexual abuse was not used given what
[RC] says that the accused said."
[10]
He then recapped the evidence as to the speakerphone incident before saying:
"Now in most of the conversations about which we heard evidence the allegation
made was relatively unspecific and was explicitly or impliedly about sexual (sic)
abusing [JC]. The evidence of [RC] and [PW] in that regard is evidence, if you accept
it, of an admission to sexual abuse of [JC] and it is evidence which you would be
entitled to treat as an admission by the accused as regards the activity in charges 2
and 3".
[11]
Later in his charge, turning specifically to the issue of corroboration, he said:
"Now, turning firstly to charges 2 and 3, there is no direct eyewitness corroboration
of [JC]'s evidence as regards these charges and the only possible source of
corroboration comes from admissions made by the accused to sexual abuse if you
accept that he made such admissions. If you do accept that he made such admissions and
accept that [JC] is credible and reliable with regard to what she says was done to her and in
her presence, I can direct you that such an admission could be accepted by you as
corroboration in respect of these two charges...
Corroborative evidence does not need to be more consistent with guilt than
innocence. All that is required for corroboration is evidence which provides support
for or confirmation of or fits with the main source of evidence about an essential fact.
5
An admission of sexual abuse if it was made by the accused would be sufficient in
law."
[12]
He also directed the jury elsewhere that they had to assess whether the witnesses
who spoke to these remarks by the appellant were giving truthful evidence; and the
evidence of the appellant that he had made no such comments and no admissions.
In response to questions from the jury, the trial judge said this,
"You can convict on charges 2 and/or 3 if you regard [JC's] evidence as to what she
said happened as credible and reliable, and if you accept that the accused admitted
responsibility for sexual abuse to at least one other person that other person could be [RC]
or [PW] but it does not have to be both of them ... you are entitled to found on the
evidence given by either or both of [RC] and [PW]."
Analysis and decision
[13]
The thrust of the grounds of appeal are that the Sheriff misdirected the jury. He
should have directed them that there had to be evidence of the detail of the conduct in
question having been put to the appellant, to which his answers were a response, before the
answers could be regarded as an admission. The directions that the comments of the
accused could be taken as admissions, having regard to the lack of specification being put to
the appellant, was not consistent with Gracie v HM Advocate 2003 SCCR 105 and G v
HM Advocate 2012 SLT 999. Further, in view of the generality of the accusations, and the
replies, this was a case where the jury required directions on the law applying to statements
by an accused person and the conditions to be satisfied if those statements are to be treated
as admissions to the charges. Thus the jury should have been directed that they had to be
satisfied that the admissions, if made, were true and related to the sexual conduct libelled
rather than the charges of assault.
[14]
In relation to the first of these arguments, this appears to merge into a question of
sufficiency of the evidence of the admissions, or at least some of them, yet no argument on
6
sufficiency was made. In the course of argument reference was also made to Murray v
and Goldie v HMA 2020 JC 164. The Lord Advocate referred to Fox v HMA 1998 JC 94;
Greenshields v HM Advocate 1989 SCCR 637; and Stirling v McFadyen 2000 SCCR 239.
[15]
Whether, and to what extent, a comment or reply made by an accused person may
properly be regarded as an admission is a fact specific question, the answer to which
depends on the nature and content of the comment and the circumstances in which it is
made. The contextual situation is important. In both Gracie and G the court concluded that
the context was such that the comments could not properly be regarded as admissions of
criminal conduct. In Gracie there was no specific context in the phone conversation in which
the comment by the accused, that he would be pleading guilty, was made. To establish
context the attempt was made to link the comment with allegations referred to either in a
different telephone conversation on another date, or a prior police in terview the contents of
which were not led in evidence. Rightly or wrongly, the court in Gracie considered that
there was insufficient means of identifying the nature of the conduct to which the
appellant's comment related. In G the Crown sought to associate the alleged admissions
with the contents of a diary, about which there was no evidence. The jury were thus left to
speculate about what the alleged admission might relate to. These cases are readily
distinguishable from the circumstances of the present case, where the context of the
admissions was clearly an allegation of having sexually abused JC. This is particularly so in
relation to the speakerphone conversation, but it also applies to the earlier confrontation if
the evidence of RC about knowledge of the abuse within the family was accepted. In this
respect, RC's evidence about her perception of why the appellant's wife was weeping when
she knew the girls were coming home may be relevant. Moreover, the jury would be
7
entitled to infer from the reply "I couldn't help myself but I'm not like those people you hear
about on the radio, on the news", that the appellant understood the allegations being made
to relate to sexual abuse of JC. The inferences to be drawn from all this was, as the trial
judge correctly directed them, a matter for the jury.
[16]
It is as ever important to consider the specific directions relating to the evidence in
question in the overall context of the charge as a whole. The jury had the benefit of written
directions as well as the oral charge. They were clearly directed, amongst other things, that:
(a)
the assessment of evidence was entirely a matter for them;
(b)
they were entitled to draw inferences such as the evidence might reasonably
bear but were not entitled to speculate;
(c) that they could only convict on the basis of evidence which they found credible
and reliable;
(d)
that for corroboration there had to be two separate credible and reliable
sources of evidence which, taken together, implicated the appellant in the
commission of the crime libelled; and
(e) that where discrepancies arose it was for them to determine their importance and
the effect they had on the assessment of evidence.
[17]
On that latter point, specific directions were added, viz:
"Now, when you consider the evidence of any admissions which witnesses say were
made by the accused, you must of course consider any differences in their accounts
of what happened or was said on the same occasion. Are they being truthful? Are
differences explained by the passage of time and general variations and recollection,
or do they cause you to doubt the reliability of that evidence, and of course on
looking at that evidence you have to take account of the accused's evidence that
there were no admissions, there were no confessions."
The jury would be in no doubt from the charge as a whole that it was for them to determine
on the evidence, as they understood it, (i) whether the remarks were made, and that in
8
determining that their assessment of the credibility and reliability of the crown witnesses
was relevant, as was their assessment of the evidence of the appellant that no such
admissions were made; (ii) whether the remarks constituted an admission to sexual abuse of
JC; and (iii) whether the admissions were such, taken with the primary evidence, to
implicate the appellant in the crimes charge and so corroborate the primary evidence.
[18]
In the present case, in the context of each of the confrontations spoken to by RC, the
jury would have been entitled to conclude that the appellant was responding to an
allegation of sexual abuse which constituted the abuse specified in charges 2 and 3. They
would have been entitled to conclude that the responses of the appellant constituted
admissions to that offending. No speculation was required for such a conclusion to be
reached. From the directions given to them the jury would have understood that it was for
them to decide whether the statements were made by the appellant, whether they were
made in the context asserted, whether they were true and whether they should be treated as
admissions to the conduct libelled in charges 2 and 3.
[19]
If the impression has been gained from Gracie and G that only unequivocal
admissions in the clearest terms may provide corroboration of a crime, that is not consistent
with long established authority. In the first place, such an approach would not be consistent
with the law on corroboration.
In order to be corroborative, evidence does not require to be
more consistent with guilt than with innocence. It is sufficient if it is capable of providing
support for or confirmation of, or fits with, the principal source of evidence on an essential
fact (Fox v HMA). The trial judge properly directed the jury that where there is a primary
source such as an eye witness,
"all that is required for corroboration is evidence that provides support for or
confirmation of, or fits with the main source of evidence about an essential fact. "
9
[20]
In relation to admissions, it is well established that it is not only clear and
unequivocal admissions which have evidential value. In Greenshields v HM Advocate 1989
SCCR 637 a reply to being cautioned and charged for murder and dismemberment that
"You don't think I did it myself do you; but I'm telling you n othing about it until I see my
lawyer", was considered to be capable of constituting an implied admission to murder.
[21] The appeal is refused.
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